Parliment proposes changes to VISA cancellations

Parliment proposes changes to VISA cancellations

Extended time frame to respond to a NOICC; that revocation decisions be expedited; that directions 65 and 63 be more flexible for NZ citizens and distinguish between serious and non-serious crimes; ‘that victims of crime, or the families, are provided with an opportunity to make a written or oral statement as part of the appeals process’ to the AAT

The Parliament’s Joint Standing Committee on Migration has published a report of the inquiry into review processes associated with VISA cancellations made on criminal grounds with the following recommendations:

Recommendation 1:

1.94 – The committee recommends that the Australian Government extend the prescribed time frame for VISA holders in Australia to respond to a notice if intention to cancel issued under section 116 of the Migration Act 1958 to 14 days.

Recommendation 2:

2.97 – The Committee recommends that the Department of Home Affairs conduct a review into the resourcing and processes applied to delegate decision making on revocation of mandatory cancellations with a focus on:

  • ensuring that the time taken to make these decisions is reduced to 3 months, with 6 months seen as the acceptable maximum; and
  • assessing if there is a need for increased staffing to meet these time frames.

Recommendation 3:

3.61 – The committee recommends that the Ministerial Directions 65 and 63 be revised to include a specific provision allowing the historic special immigration status of New Zealand citizens, and it’s impact on take up citizenship in Australia, to be a secondary consideration in reviewing character cancellations.

This consideration should not be taken into account if the applicant has ever been convicted of serious violent or sexual crime, such as rape, murder, sexual offences involving children, aggravated assault or armed robbery.

Recommendation 4:

3.62 – The Committee recommends that all young people from New Zealand who are living permanently in Australia, and who have completed at least 4 years of their higher education in Australia, are eligible to access student loans through the Higher Education Loan Program (HELP).

Recommendation 5:

3.117 – The Committee recommends that the Ministerial Directions 65 and 63 be revised to create a distinction between serious violent offending, and other types of offending, with serious violent crimes more likely to result in VISA cancellation or refusal. In line with the Migration Amendment (Strengthening the character test) Bill 2018, serious violent crimes includes designated offences such as murder, manslaughter, kidnapping, assault, aggravated burglary, sexual assault, sexual offences involving children, breaching an order made by a court tribunal for the personal protection of another person, and weapons offences. The revised Ministerial Directions should state that, in cases of serious violent offending:

  • The likelihood of the applicant reoffending is a primary consideration;
  • The impact of the applicant’s crimes on victims is a primary consideration; and
  • The applicant’s strength, nature and duration of ties to Australia is Secondary consideration, and is not given more weight than consideration of the impact on victims.

Recommendation 6:

3.178 – The committee is recommending that the Australia Government regulate to guarantee that victims of crime, or their families, are provided with an opportunity to make a written or oral statement as part of the appeals process in the Administrative Appeals.

  • Where victims/families provide statement, this evidence should be a primary consideration, especially if the review applicant poses a continuing threat to victimd, their families or the Australian community; and
  • Where victims/families chose not to provide a statement, the impact on victims should be a secondary consideration.

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